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F.2d 882, 885 (9th Cir. 1975), affg. T.C. Memo. 1972-133. Where
the taxpayer succeeds in producing evidence supporting a finding
contrary to the Commissioner's determination, the burden of
production or burden of going forward with evidence shifts to the
Commissioner. See Bernuth v. Commissioner, 470 F.2d 710, 714 (2d
Cir. 1972), affg. 57 T.C. 225 (1971). The taxpayer nonetheless
continues to bear the ultimate burden of persuasion.
There is a well-recognized exception to the normal placement
of the burden of proof in cases where the Commissioner determines
that the taxpayer is liable for an addition to tax for fraud. In
such cases, the Commissioner bears the burden of proving fraud by
clear and convincing evidence. See sec. 7454(a); Smith v.
Commissioner, 91 T.C. 1049, 1053 n.3 (1988), affd. 926 F.2d 1470
(6th Cir. 1991).
The Court has also recognized an exception to the normal
rule respecting the placement of the burden of proof in motions
practice. For example, in Pietanza v. Commissioner, 92 T.C. 729
(1989), supplemented by T.C. Memo. 1990-524, affd. without
published opinion 935 F.2d 1282 (3d Cir. 1991), the parties filed
cross-motions to dismiss for lack of jurisdiction. The taxpayers
moved to dismiss on the ground that the Commissioner had failed
to issue a valid notice of deficiency; the Commissioner moved to
dismiss on the ground that the taxpayers had failed to file a
timely petition. Because the very existence of the notice of
deficiency was in dispute, the Court held that the Commissioner
should bear the burden of proof on the point because it would be
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